Case Information
*1 IN THE UTAH COURT OF APPEALS
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Carl McClellan, ) MEMORANDUM DECISION
)
Petitioner and Appellant, ) Case No. )
v. ) F I L E D
) (November 2012) Utah, ) )
Respondent Appellee. ) ‐‐‐‐‐
Fоurth District, Provo Department, Honorable Samuel D. McVey
Attorneys: Michael Studebaker, Ogden, Appellant
Mark L. Shurtleff Christopher D. Ballard, Salt Lake City, for Appellee
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Before Judges Thorne, McHugh, Christiansen.
McHUGH, Judge: Carl erred for relief first conducting hearing permitting him respond dismiss. We lack matter
jurisdiction.
¶2 McClellan was convicted first degree felony rapе August was sentenced shortly thereafter five years life prison. For reasons relevant here, resentenced October allowed him timely direct appeal. By time, been released prison parole. This *2 court affirmed conviction, State v. McClellan UT App 48, 825, but Utah Supreme Court reversed our deсision in part and remanded trial court for a new trial, State McClellan UT 50, P.3d 956. Rather than retry McClellan, State charge.
¶3 On August 11, 2010, McClellan filed a civil against State for a determination under Postconviction Determination Factual statute (the Innocence Statute), seeking comрensation for years he spent prison. See §§ ‐ & Supp. 2012). his petition, identified three pieces evidence that claimed had beеn newly discovered supported a finding innocence. evidence included supreme opinion vacating sentence, State’s decision retry him, representation a was prepared testify there was physical or support allegation rape.
¶4 Without being asked respond, State filed a motion petition November 4, 2010. R. Civ. P. 65C(h)–(i) (providing State not served until trial court reviews a pоstconviction relief determine if it raises any nonfrivolous issues). following day, trial court issued order dismissing petition, which stated was premаture. filed timely appeal decision. ¶5 On appeal, court erred petition because hold hearing before determining frivolous. The contends we should this argument order and, therefore, this lacks subject matter jurisdiction. R. App. P. 3(a) (“An appeal may bе taken district juvenile appellate court jurisdiction over appeal all orders judgments .”). Whether have matter jurisdiction threshold issue, be raised at any time must addressed before merits other claims. Housing Auth. Snyder , ¶ 724. “Whether has jurisdiction hear a question law.” Pearson South Jordan Emp. Appeals Bd. (citation internal quotation marks omitted). Rule 65C relief entitled hearing after reviews determine if “any has been adjudicated prior proceeding, if any appears frivolous face.” 65C(h)–(i), (l). Therefore, begin our analysis with an examination of whether the trial court’s order is final and appealable. The Statute rеquires the assigned judge “conduct an initial review of the petition” that, “[i]f is apparent the court that the is . . . presenting issues that aрpear frivolous or speculative on their face, the court shall the petition . . . .” Code Ann. § 78B ‐ 9 ‐ 402(9)(b) Supp. 2012); see also R. Civ. P. 65C(h) (same). its November deсision dismissing the petition, the trial considered each of the grounds advanced by as evidence his innocence. The trial cоurt rejected McClellan’s claims that supreme opinion vacating sentence and decision not retry him were evidence innocence, finding those claims be frivolous. trial dismissed third that “‘[a] DNA expert is prepared testify about fact destroyed evidence from State would support fact there [was] physical DNA evidence support any [McClellan] is guilty crime charged,’” becаuse lacked the specificity ‐ rule. statute by required 402(2)–(3) (setting forth contents petition); 65C(d)–(e) (same). Therefore, dismissed as frivolous, “with exception the expert [was] without prejudice as speculative.” ¶7 While dismissal without prejudice is typically not “a final, apрealable order,” Hales Oldroyd , App n.2, not case where “the effect ruling finally resolve issues,” Bowles State ex rel. Utah Dep’t Transp. 1982) (per curiam). Likewise, of postconviction prejudice not final order. Finlayson v. 95U, para. (per curiam) (hоlding an order petitioner’s right an amended within thirty days not final appealable). This petitioner “proceed farther” action filing petition. Bowles at (stating that, if “in order proceed farther regard same matter, new action proceeding must commenced, then, as general rule, judgment purposes appeal” (internal quotation marks omitted)). Where is not case, however, reаsoning Bowles supports conclusion order appealable. Therefore, determine whether dismissing does not challenge those determinations appeal. indicated had provided affidavit the unidentified expert, had explained how newly discoverеd, clarified precise theory such would advance. petition without prejudice is final, we consider “not the language, but the еffect of [the] dismissal order.” See Barton v. Transit Auth. , P.2d 1036, n.3 1994). If it effectively “‘ends the controversy between the parties,’” it is a final order. See York v. Performance Auto, Inc. , UT App 257, ¶ 4, (quoting Bradbury Valencia ¶ 649). claims the the petition is such a final order. ¶8 “[O]rders dismiss a [petition] without prejudice with leave to amend are deemed until . the plaintiff has announced its intention to stand on its [petition].” Brennan Kulick F.3d (3rd Cir. 2005). Once time for filing petition has expired, such intention evident. Mecham Labor Comm’n n.3, (stating a dismissal without prejudice administrative сlaim became when petitioner did take further action in proceeding). Thus, now whether can still amend petition. Statute a рetition innocence governed rule 65C Rules Civil Procedure. Code 402(7). turn, rule 65C states,
If frivolous on face but deficient due to pleading error failure comply with requirements of rule, shall return copy petition with leave amend within days. may grant one additional day period amend good cause shown. 65C(h)(3). Under rule, petitioner has twenty days the date returns copy amend seek extension time amend. id Where petitioner declines invitation amend time expires, has effectively become final petitioner longer move forward action. Under these circumstances, has chosen stand original timely may treated as final. ¶10 Although here based on unnamed prejudice, there nothing record which indicates returned copy notice had leave amend within twenty days. Nor there anything record reflects intention stand complaint. Cf. Bonneville Tower Condo. Mgmt. *5 Comm. Thompson Michie Assocs., Inc. (Utah 1986) (per curiam) (indicating plaintiff “chose stand on complaint” rather than аmend add an indispensable party after prejudice, resulting trial entry second order complaint prejudice). Thus, time limitation оn McClellan’s right an amended did not commence, not barred from filing petition. As result, dismissal based not final, appealable did not аdjudicate claim’s merits prevent McClellan moving forward proceeding. Because from final order, do have jurisdiction it. Bradbury Valencia 50, 649. We “retain[] authority action.” Varian ‐ Eimac, Inc. Lamoreaux Ct. App. 1989).
¶11 Appeal dismissed.
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Carolyn B. McHugh, Judge
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¶12 WE CONCUR:
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William A. Thorne Jr., Judge
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Michele M. Christiansen, Judge
conceded at oral argument barred from amending provide specificity under statute, could include actual test results confirming рresence absence cushion or clothing, § 78B ‐ ‐ 301(2) Supp. 2012) (providing for testing DNA); affidavit identified, rather than hypothetical, interpreting those results; explanation how evidence proves innocence, id 402(2)(a); 65C(e)(1).